Rwanda: Genocide, Justice and Human Rights: Can They Be Reconciled?

Rarely has a judicial system come under the kind of scrutiny generated by Genocide trials in Rwanda. When the Government of Rwanda announced its decision to prosecute those who took part in the 1994 Genocide against the Tutsi, governments that had done nothing to stop the killings, along with an assortment of human rights groups and academics (mostly in Europe and America), denounced the policy, voicing “serious concerns” at the short-comings of “mass prosecutions”, and generally “urged” the Government to reconsider. Amnesty International, Human Rights Watch (HRW), International Crisis Group (ICG), and Federation Internationale des Droits de l’Homme (FIDH), are but a few organizations that have since conducted extensive examinations about the limitations of Rwandan Genocide justice. Predictably, “Genocide Justice Monitoring” in Rwanda became a “rainmaker” for these NGOs. Hence, at a time when “guilt-ridden” governments disbursed millions of dollars and extended diplomatic support to the ICTR - to ensure that a few cases were conducted on behalf of the otherwise disgraced United Nations - Human Rights NGOs wrote proposals and secured funding to “monitor and evaluate” the inability [sic] of Rwandan courts to conduct fair and expeditious trials. This was fertile and exciting territory for the advocates. The purpose of the inquiry was not whether fair trial rights were compromised in Rwandan Genocide proceedings; but rather, in the certainty that they were, how bad the situation really was. Support toward strengthening Rwanda’s judicial system to handle Genocide cases was slow to come and, when it did, wholly inadequate. Meanwhile, alarming reports continued to be issued over the years about the “lack of fair trials” in Rwandan Genocide trials. In the best of worlds, it would be a paradox that these NGOs - which are known to support bodies like the ICC in order, they say, “to end impunity for serious international crimes” - are at the forefront of a coordinated and well sponsored public relation campaign to condemn efforts at achieving the same in Rwanda. Here is a government willing to eradicate the culture of impunity that characterised Rwandan politics for longer than most of us can account for. Where is the difficulty? Challenges to Rwandan “Genocide justice” abound: lack of capacity/training of judicial personnel, lack of independence and/or impartiality in the judiciary, lack of resources, unavailability of legal services for defendants, and delays in the administration of justice, to name but the common. Along the way, for good measure, Human Rights NGOs have added on to their descriptions a range of accusations against the Government of Rwanda and, in particular, President Kagame. Various labels found their way in the human rights discourse about Rwanda, including that of running an “authoritarian regime”, spreading an “atmosphere of fear and distrust”, “silencing the opposition”, and “cracking down on civil society and the press”. That the same President continues to be highly praised, at home and abroad, for “Rwanda’s rebirth” - through dedication and visionary leadership - is somewhat confusing. The fifteenth anniversary of the Genocide which saw over 1,000,000 Tutsi killed, turned into an opportunity to further vilify the leadership of Rwanda. This time, President Kagame was accused of “manipulating the Genocide” as a “cover-up for repression”. Repression, human rights groups charge, is done through Genocide justice, including the use of Gacaca tribunals. How can it be, the advocates press on, that fifteen years after the events, new accusations of Genocide participation arise? What is it about “Genocide justice” in Rwanda that makes these groups so agitated? Is it the idea that victims cannot hold their perpetrators to account? Is it the proposition that only an international tribunal can guarantee impartiality? Or is it that, as a poor nation, Rwanda cannot afford international standards? There seems to be a proposition that, no matter how hard Rwanda tries, it will fail to satisfy these groups that the accused in domestic Genocide proceedings enjoy the benefit of procedural guarantees, consistent with Rwanda’s obligations under international and domestic law. Even ICTR judges seem to have been swayed; Trial Chambers and the Appeals Chamber there have issued decisions holding that cases involving lower-rank (“left-over” would be more accurate) accused could not be transferred to Rwanda because they may not receive a fair trial; this is “regardless of whether or not their [the accused] fears are well founded” . HRW made submissions against the transfer of accused for trial in Rwanda raising a spectrum of objections, including some creative but extraneous arguments about the jurisdiction of Rwandan courts, and the denial of the right to vote to remand prisoners. Nonetheless, as is true of a machine gun, HRW fired at will hoping that, at least, one bullet would hit the target. The tactic was successful on two grounds: the risk of life imprisonment in solitary confinement, and the potential fears of defence witnesses to come forward. ICTR Chambers relied significantly on HRW submissions on both grounds to rule against transfer. The Appeals Chamber found no error in the appreciation of lower chambers; the findings, it said, were reasonable based on the available “information” before the judges. For all its good work, HRW is not a neutral investigative body, it is an advocacy group. As such, it takes positions at the political and policy level and works to defend them with what “evidence” it can gather. That HRW was allowed to voice its opinion before ICTR judges as a “friend of the Court” is one thing; that the judges relied on the information “as is” to reach a finding that transfer to Rwanda is not appropriate is quite stunning. A lot more can be said about procedural guarantees that ICTR judges found lacking in Rwandan legal system, including the fact judges did not consider that, in Rwandan largely civil law system, the admissibility of evidence is different from the adversarial model in force at the Tribunal; thus, written evidence is admissible more readily before Rwandan courts, opening the possibility for reluctant witnesses to testify from their locations within Rwanda and beyond. In the same vein, the concept of ‘equality of arms’ (between the prosecution and the defence) is, at best, an aspiration; Defence counsels would agree that parties in proceedings before the ICTR are anything but equal. It was foreseeable that, faced with similar requests, judges in domestic jurisdictions will follow the ICTR’s lead: both in Finland and the UK, judges held that extradition could not proceed because, in the first case, the ICTR had said so, in the second, there was “a real risk” they [suspects] will suffer “a flagrant denial of justice”, a test formulated by the European Court of Human Rights in the Soering case (1989). There is, however, a significant difference in as far as the effects of the rulings are concerned: Finland will prosecute the suspect; in the UK, the four suspects were set free. This extraordinary British outcome is the result of a legal loophole. While Finland has the necessary laws, the UK is unable to prosecute individuals accused of participation in the Genocide against the Tutsi in Rwanda, even when these individuals are found on its soil, because the UK has yet to adopt the appropriate legislation. Laymen and legal practitioners alike are at pain to follow this line of reasoning. It seems to me that, once the British judges denied extradition, the matter before them was not just about jurisdiction over the alleged crimes; it also involved a fundamental principle of justice. Indisputably, the atrocities committed in Rwanda – murder, manslaughter, culpable homicide, rape, enslavement - were criminal according to British law. Murder is murder the world over. It does not become less of a murder because directed against a whole group as opposed to a single individual. Nor can anyone seriously dispute the fact that the alleged crimes – Genocide, Crime Against Humanity, and War Crimes - were, in the words of the Political Covenant, “criminal according to the principle of laws recognized by civilized nations”. In other words, the retroactive application of the UK International Criminal Court Act (2001) will not violate the principle of legality because the allegations against the suspects were substantively criminal, under international law, when performed. UK judges know this. The only reason for restricting the enforcement of criminal jurisdiction against the suspects is that it is bad precedent: it is politically inconvenient to assert universal jurisdiction in international relations (for fear of future claims against allies, for example). There is also a practical consideration as the Belgian experiment has shown: obtaining evidence in trials for extraterritorial crimes is difficult and costly. Plus, as a rule, no State wishes to overburden its court system with extraterritorial trials in circumstances where the offences are not deemed to constitute threats to the fundament interests of the State, the human rights rhetoric notwithstanding. Of course, this was the first time that the British High Court had prevented an extradition on the basis that it would violate the European Convention on Human Rights. It was also the first time that a legal vacuum was deemed sufficient to allow individuals accused of the ‘Crime of Crimes’ to mingle with subjects of HMQ, ride in the same buses, share common areas and shop at the same grocery stores. As the experience suggests, the usefulness of international prosecutions is limited. The ICTR has prosecuted a few and, except for handful cases of prosecution in Belgium, Switzerland and the Netherlands (for war crimes and murder, not genocide), there is a total lack of interest and enthusiasm in prosecuting Rwandan genocide suspects abroad. Those countries that have appropriate laws lack the resources or political will. There is lingering feeling that is hard to shake off. Is Rwanda Genocide justice not good enough? Are Rwandans too poor to judge their own? If the conclusion is that Rwanda cannot afford international standards, perhaps it should do without them! The point is this: if the human rights discourse continues to assess the Rwandan legal system in a manner heavily influenced by human rights activists, without any sensitivity to the underlying bargain and political needs of Rwanda, it may result in a backlash against the principles it is purporting to promote. I am reminded of a case that can serve as an illustration. Back in 1996, the United Nations High Commissioner for Human Rights set up a “Field Operation” in Rwanda (UNHFOR). At the time, hostile forces (ex-FAR and militias) were still conducting hit-and-run raids in Rwanda from bases in the DRC, targeting Tutsi civilian, visibly carrying-on with the Genocide ideology, and perpetrating acts of Genocide, admittedly with the aim of destabilizing the regime. UNHFOR, as it was then known, concentrated its work on documenting human rights abuses by government forces as the military attempted to conduct counter-insurgency operations in the region while respecting DRC sovereignty. In the volatility of post-Genocide Rwanda, the Government of Rwanda eventually run out of patience. The Mission was unceremoniously shut down, causing anguish and distress among the “monitoring officers”, some of whom secured employment with the ICTR. If Rwandans are led to believe that procedural guarantees in criminal trials do not serve their interests and respect their values, that they instead advance the interests of Genocide suspects (resulting in dysfunctional rulings as in the UK), they will not believe that these are legitimate ‘protection’, thus putting into question not only the legacy of the International Tribunal, but Rwanda’s faith in human rights as a necessary component of Genocide justice. The author is a Consultant in Legal Affairs based in Kigali